Abercrombie Case Leaves Companies in Dark on Dress Codes

Clothing retailer Abercrombie & Fitch may have ended its “appearance and sense of style” hiring rule in April 2015—a rule currently the subject of a lawsuit pending before the U.S. Supreme Court—but questions remain as to how employers can enforce their dress codes without violating anti-discrimination laws.

How can employers know if workers’ apparel, head dressings, jewelry or body markings are tied to religious beliefs? Are they expected to ask if an employee’s apparent dress code violation is based on a religious adherence? If they do ask, might they be sued for asking? And how does a company reconcile a worker’s religious beliefs with a dress code designed to ensure that same worker’s safety?

“This is a tough one,” said Mila Grigg, CEO of MODA Image and Brand Consulting. “Companies are constantly asking me [these questions], and many are beyond frustrated. Unless HR teams are going to be well-educated by their companies on 4,200-plus religions around the world, how on earth would they know what to look for and how to interpret certain [apparel]?”

U.S. Supreme Court justices heard arguments in February 2015 in the case of Samantha Elauf, a Muslim teenager who was denied a job at Abercrombie because she wore a head scarf. Abercrombie agreed to pay $71,000 to settle two suits similar to Elauf’s in California in 2013. In Elauf’s case, the company argued that it didn’t have “actual knowledge” that Elauf wore her scarf for religious reasons. A federal appeals court sided with Abercrombie, and Elauf appealed to the high court.

On April 23, 2015, Abercrombie abandoned its “Look Policy” for employees, which focused on a sexy, attractive, preppy appearance. Company executives said salesforces would now focus on selling clothes, not on obsessing over whether they fit the U.S.’s culturally accepted notion of what’s “attractive.”

Confusion Remains

Still, HR managers can be forgiven for remaining perplexed about what types of apparel, jewelry, head dressings and body markings they can ban in the workplace without running afoul of laws that prohibit discrimination based on religious beliefs.

The easiest situation for an employer is when a worker openly expresses that her apparel is based on her religious beliefs, said Tamara Devitt, a partner in the Silicon Valley office of Haynes and Boone. In that case, she said, “the employer is on notice and at a bare minimum must discuss with the employee possible accommodations.”

The tougher situation, she said, occurs when there is a question about whether an employer ”should have known” that apparel complies with a religious belief.

“Does this mean that every accessory or marking, whether or not associated with traditional religious symbols, should put an employer on notice?” she asked. “The answer is, of course not. The law does not yet specifically obligate an employer to ask whether an employee needs a religious accommodation at the time of hire, or every time an employee is found to have violated a dress code policy tied to legitimate business needs.”

Better, said David L. Barron, an attorney with Cozen O'Connor in Houston, is to have a clear dress code policy that anticipates the issue ahead of time, rather than requiring “supervisors to ‘know it when they see it’ in applying the dress code,” he said. “For example, what is acceptable in the areas of tattoos, piercings, makeup, or head coverings and hats? That answer differs between workplaces, and sometimes even between positions within a company.”

A written and meticulously enforced dress code policy can help protect a company against liability, Barron said, especially when employers argue that allowing certain apparel would detract from its image or raise safety or sanitation concerns.

“The employer's position will be much stronger if it has a documented and consistently applied policy already in place,” he said. “Absent such a policy, the [U.S. Equal Employment Opportunity Commission] or court may wonder whether the issue is really as important as claimed by the employer.”

Devitt advised putting some of the onus on employees, preferably with a written policy that instructs them to contact their managers or HR departments if they feel they need an accommodation for religious beliefs, observances or practices.

Training managers and HR departments about the issue is key, Barron said.

“Train management to first ask the employee to correct the violation of the dress code,” he said. “If the employee complies without a dispute, problem solved. If the employee claims a religious basis for noncompliance, the employer has the burden to investigate whether a reasonable accommodation can be made. Only at that point should the employer have a detailed discussion about the religious beliefs of the employee and the possibility for an exception to policy. Absent a legitimate need for such a discussion about [apparel], the employer runs the risk of offending the employee and creating evidence of harassment or discrimination.”

If the situation gives rise to disciplinary action, Devitt said, “get the employee’s side of the story and give her a chance to respond.

“If an employer has a written policy regarding religious accommodation, and the employee first brings up a religious accommodation issue only after the discipline has been issued, the employer should ask why the employee did not raise the issue prior to discipline and can factor that explanation into its decision,” she said.

And if it becomes difficult for managers or HR departments to decide if the dress code or the religious accommodation should prevail, she said, get the company’s lawyers involved.

“Given the increased focus on these types of issues, it is probably better to err on the side of caution,” she said.

Said Grigg: “This is a slippery slope we are walking. Dress codes are put into place for a reason. They offer consistency to the consumer, create brand strength and may comply with necessary safety standards. I am certain we will all have new policies when the Supreme Court issues their opinion.”